Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Administrative Rule
Public tender for the licensing of an unrestricted free-to-air television programme service of national and general scope
Within the process of introducing the digital terrestrial television in Portugal, Resolution of the Council of Ministers no. 12/2008, published in the Official Gazette, Series I, no. 15, of 22 January 2008, determined a capacity reserve for a new unrestricted free-to-air television programme service, in frequency bands of a national scope, for the digital terrestrial television broadcasting service, associated with Multiplexer A, the right of use of which was opened for public tender by Regulation no. 95-A/2008 of ICP -Autoridade Nacional de Comunicações (ICPANACOM), published in the Official Gazette, Series II, no. 39, supplement, of 25 February 2008.
Under the above-mentioned Resolution of the Council of Ministers no. 12/2008, of 22 January 2008, the public tender for the granting of the licence for the new unrestricted free-to-air television programme service should be opened when applicable legal conditions were met.
ICP-ANACOM endorsed, within its sphere of power, the proposal for the granting of a frequencies use right of a national scope for the digital terrestrial television broadcasting service, associated with Multiplexer A, on 20 October 2008.
Considerations for the tender opening being therefore fulfilled, in the light of the specific features of the current provision of television programme services and having balanced general interest, the quality improvement and diversification of the free-to-air broadcasting offer, aimed at all segments of the population, is deemed to be fundamental, together with the optimization of the radio spectrum.
Therefore:
Pursuant to paragraph 1 of article 15 of Law no. 27/2007 of 30 July, having heard the ERC - Entidade Reguladora para a Comunicação Social (Media Regulatory Entity) and having elapsed the period of public assessment, the Government, through its Minister for Parliament Affairs, hereby determines:
1 – The opening of a public tender for the granting of a licence to carry on television broadcasting activities consisting of the organization of an unrestricted free-to-air television programme service of a national and general scope, broadcasting twenty-four hours a day, using spectrum allocated to terrestrial digital television within the capacity reserve provided for in Regulation no. 95-A/2008 of ICP-ANACOM, published in the Official Gazette, Series II, no. 39, of 25 February 2008, as determined pursuant to Resolution of the Council of Ministers no. 12/2008, published in the Official Gazette, Series I, no. 15, of 22 January 2008.
2 – To approve the Tender Regulation, referred to in paragraphs 1 to 7 of article 15 of Law no. 27/2007 of 30 July, which shall be available for consultation at the website of ERC - Entidade Reguladora para a Comunicação Social, at www.erc.pthttp://www.erc.pt/, as well as at its premises’ consumer services, in Avenida de 24 de Julho, 58, Lisbon, every working day, between 9 a.m. and 4 p.m., from the day this Administrative Rule is published up to the date and time the tender is officially opened.
3 – To approve the tender specifications, referred to in paragraph 8 of article 15 of Law no. 27/2007 of 30 July, which shall be available for consultation at the website of ERC - Entidade Reguladora para a Comunicação Social, at www.erc.pthttp://www.erc.pt/, as well as at its premises’ consumer services, in Avenida de 24 de Julho, 58, Lisbon, every working day, between 9 a.m. and 4 p.m.,from the day this Administrative Rule is published up to the date and time the tender is officially opened.
4 – The ERC shall disclose up to the date this Administrative Rule comes into force how it intends to apply the criteria mentioned in article 13 of the Regulation attached hereto.
5 – This Administrative Rule shall come into force on the 15th working day following that of its publication.
The Minister for Parliament Affairs, Augusto Ernesto Santos Silva, on 27 October 2008.
REGULATION OF THE PUBLIC TENDER FOR THE LICENSING OF AN UNRESTRICTED FREE-TO-AIR TELEVISION PROGRAMME SERVICE OF NATIONAL AND GENERAL SCOPE
Article 1
Subject-matter
The public tender provided for herein focuses on the granting of a licence to carry on television activities consisting of the organization of an unrestricted free-to-air television programme service of a national and general scope, broadcasting twenty-four hours a day, using spectrum allocated to terrestrial digital television within the capacity reserve provided for in Regulation no. 95 A/2008 of ICP - Autoridade Nacional de Comunicações (ICP-ANACOM), published in the Official Gazette, Series II, no. 39, of 25 February 2008, as determined pursuant to Resolution of the Council of Ministers no. 12/2008, published in the Official Gazette, Series I, no. 15, of 22 January 2008.
Article 2
Applicable provisions
The public tender shall be governed by the provisions of Law no. 27/2007 of 30 July, by this Regulation and specifications, and also by the Code of Administrative Procedure (CAP).
Article 3
Applicants
1 – Companies already set up, or companies to be formed, that pursue television activity as their main objective, that do not fall under the restrictions provided for in article 12 of Law no. 27/2007 of 30 July, and that meet the requirements set out by this Regulation, may apply for the license concerned by this Regulation.
2 - Companies to be formed may apply insofar as they are provided with temporary identity cards; nevertheless, in case the license is granted thereto, it shall only be issued where an official certificate recording the entry of the company’s contract in the competent Companies Register is submitted, or where the ERC - Entidade Reguladora para a Comunicação Social is given an access code to the permanent certificate.
3 - The minimum capital stock required from the company that is awarded the license shall be (Euro) 5 000 000, which must be fully paid up before 30 days have elapsed from the notification of decision awarding the license, at the risk of expiry thereof.
4 – Where the applicant is a limited company, shares representing its capital stock must be registered shares.
5 – Applicants shall not change the ownership and proportion of the share capital from the date the application is submitted until the date the license is issued.
Article 4
Preparation of applications
Specifications shall be available for consultation at ERC’s website, at www.erc.pthttp://www.erc.pt/, as well as at its premises’ consumer services, in Avenida de 24 de Julho, 58, Lisbon, every working day, between 9 a.m. and 4 p.m., until the date and time the tender is officially opened.
Article 5
Provisional security deposit
1 – Applicants are required to lodge a security deposit of (Euro) 750 000 until the date and time the application is submitted.
2 – The security deposit shall be provided through bank guarantee or fidelity guarantee insurance made to ERC, being in either case appropriately documented.
3 – The companies who lodged the security deposit may release them in the following situations:
a) The request for application failed to be rendered effective or to be admitted, upon expiry of the deadline to submit applications;
b) Rejection of the application, after it has been submitted;
c) The license failed to be granted, following notification provided for in paragraph 3 of article 15.
4 – Where any of the situations provided in the preceding paragraph occurs, the ERC’s Regulatory Board shall authorize the release of the security deposit within five working days from the date the interested party’s request is received.
5 – The provisional security deposit shall be deemed to be broken and confiscated where the company who is awarded the license fails to provide a performance security within the deadline provided for in paragraph 1 of article 18, save for good reason, accepted as such by ERC.
Article 6
Requests for clarification
1 – Interested parties may request, during the period for submitting applications and up to 15 working days before the expiry of the respective deadline, that any uncertainties concerning the interpretation of any of the tender procedure instruments be clarified.
2 – Requests for clarification must be presented in written form, and delivered either by hand against receipt at customer services of ERC’s premises, or by registered letter with acknowledgement of receipt, and addressed to the chairman of ERC’s Board of Directors.
3 – ERC shall provide due clarifications by registered letter with acknowledgement of receipt, which must be sent up to 10 working days after the date of reception of the respective request.
4 – Clarification requests and respective replies shall be included in a sourcebook which shall be available for consultation at ERC’s premises, every working day, between 9 a.m. and 4 p.m., as well as on ERC’s website.
5 – The sourcebook shall be closed and stored at ERC on the day the tender is officially held, on this day also ceasing to be available the information referred to in the preceding paragraph.
6 – Where postal services are used, interested parties shall be solely responsible for any delays, and may not submit any complaints in case the clarification request is delivered at ERC’s premises upon expiry of the respective deadline.
Article 7
Deadline for submission of applications and how to apply
1 - Applications shall be submitted in written form, duly dated and signed, in Portuguese language, addressed to the Chairman of ERC’s Board of Directors, and shall include the identification of the applicant and a reference hereto.
2 – Application requests shall be delivered by hand against receipt at customer services of ERC’s premises, between 9 a.m. and 4 p.m..
3 – The time-limit to submit applications expires 40 working days after the entry into force hereof.
Article 8
Documents to be attached
1 – Applications shall attach the following documents:
a) Statement made by the representative with power to bind the applicant, acknowledged as such by law, expressly accepting the tender conditions, the obligations resulting from applying, and to fully comply with the contents of the proposal in case the license is awarded thereto;
b) Certificate of registration and entries in force issued by the competent Companies Register, or access code to the applicant’s permanent certificate, in such terms that verification of the said particulars can be carried out;
c) Simple photocopy of the respective bylaws;
d) Document evidencing the lodging of the provisional security deposit under article 5;
e) Documents with data on the applicant’s direct and indirect equity components, specifically identifying the shareholders, the corresponding share amount and respective proportion of the share capital, as well as further documents and particulars that enable the verification of paragraphs 4 and 5 of article 13;
f) Document evidencing full payment of social security contributions and legal taxes by the applicant, or permission granted to ERC to consult the applicant’s taxation position;
g) Declaration of conformity of stock records pursuant to the Official Chart of Accounts;
h) Technical plan prepared according to the structure defined in the specifications;
i) Economical and financial plan prepared according to the structure defined in the specifications;
j) Document that confirms the sufficiency and quality of the human and technical resources assigned, describing the human means assigned to the project and indicating the jobs involved and the professional qualification of those in directors posts;
k) Detailed description of the television broadcasting activity the applicant intends to pursue, including the respective editorial charter, general programming lines and name chosen for the programming service, as well as all elements that enable the assessment of the project according to criteria and sub-criteria laid down in article 13, according to the structure defined in the specifications;
l) Statement of the regulatory entity concerning each terrestrial programme service held by the applicant and by other relevant entities for the purposes of paragraphs 4 and 5 of article 13, assessing the degree to which the following are observed:
i) Obligations specified in provisions that govern the access to and performance of the television broadcasting activity;
ii) Project approved in the scope of the licensing procedure.
m) Statement made by the representative with power to bind the applicant that all copies presented, regardless of the medium, are consistent with the original, and that for all purposes the prevalence of the latter is accepted;
n) Any other elements the applicant deems to be relevant as far as the assessment of the respective application is concerned.
2 – The entities referred in paragraph 2 of article 3 are exempted from submitting the documents provided for in paragraph 1 a), b), c), f) and g), and must submit:
a) Binding protocol between settlers, that expressly accepts tender conditions, the obligations resulting from applying, and the contents of the respective proposals in case the license is awarded thereto;
b) Draft bylaws, the content of which is binding on settlers;
c) Copy of the temporary identity card.
3 – Entities referred to in paragraph 2 of article 3 must expressly indicate the address to which all mail concerning the tender should be sent.
4 – Companies that were set up during the 90 days prior to the date on which the application is submitted are exempted from providing the documents referred to in paragraph 1 f) and g).
5 – Documents submitted by applicants whose registered office is outside the national territory must be issued and authenticated by competent authorities of the country of origin, or, in the absence of an identical document to those required, it may be replaced by a sworn statement made by the applicant to a judicial or administrative authority, notary or other competent authority of the country of origin.
6 – For the purposes of paragraph 1 l), statements issued by regulatory authorities or related entities with jurisdiction over each of the programme services held by the applicant are deemed to be valid; the said jurisdiction shall be assessed pursuant to paragraphs 2 to 5 of article 2 of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007, amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.
7 – Applicants that, for justified reasons, are prevented from submitting statements provided for in point l) of paragraph 1 shall prove the referred degree of observance by the appropriate similar means, one’s own sworn statement being deemed to be valid, where an official document cannot be provided.
8 - ERC is entitled to exempt applicants from providing any documents or elements referred in paragraph 1, where it is aware of the concerned information by virtue of its regulation and supervision activities.
9 – All documents attached to the application request must be written in Portuguese or
otherwise must be accompanied by a certified translation, whose prevalence over the original must be accepted, for all purposes, by the applicant.
10 – All documents submitted by applicants that are attached to the application request shall not be returned, and shall be kept by ERC.
Article 9
Distribution of the tender documents
1 – The application request shall be submitted in a closed envelope autonomously of remaining attached elements, the name of the applicant and the license being applied for being identified in the front of the envelope.
2 – Documents and elements attached to the application request, pursuant to article 8, shall be submitted in closed cases that guarantee that the respective content is sealed, numbered by reference to the total number and duly identified, making a distinction between the chapters on the applicant’s identification, the detailed description of the television broadcasting activity the applicant intends to pursue, the economical and financial plan and the technical plan, according to the structure defined in the specifications.
3 – The original documents on the chapter of the applicant’s identification must be numbered sequentially in all pages, which shall be initialled by the legal representative of the applicant and contain an indication that the documents are original versions.
4 – Two copies of all documents referred to in the preceding paragraph shall be presented, duly identified as such.
5 – The elements on the chapter of the detailed description of the television broadcasting activity the applicant intends to pursue, the chapter of the economical and financial plan and the chapter of the technical plan shall be included in undividable sections, pages being sequentially numbered by chapters, each section being initialled on the first page by one of the legal representatives of the applicant, and containing an indication that the documents are original versions.
6 – Five copies of the elements referred to in the preceding paragraph shall be submitted in non-rewritable CD-ROMs, with the respective files in PDF format (Adobe Acrobat), which shall maintain the same sequential page numbering per chapter.
7 – Access to the files referred in the preceding paragraph may be configured so that a password is required, in which case the password shall be indicated in a statement contained in a closed envelope.
8 – The content of the referred files may also be cryptographed, in which case applicants must indicate the necessary keys or codes for consultation, in the terms referred in the preceding paragraph.
9 – The envelopes referred in paragraphs 7 and 8, duly identified, must be integrated in the envelope with the application request.
10 – The saving configuration of files in the format provided for in paragraph 6 shall guarantee that contents cannot be altered or saved by any other means.
Article 10
Tender opening procedure
1 – The tender opening is incumbent on ERC’s Board of Directors and shall take place at 10 a.m. of the 1st working day after the expiry of the time-limit to submit applications referred to in paragraph 3 of article 7, according to a notice to be disclosed by ERC in the media and at its website, which shall also indicate the venue of the event.
2 – Only duly accredited representatives of applicants may participate in the tender opening, up to three persons per applicant.
3 – The official tender opening aims:
a) To confirm the reception of envelopes with the application requests, as well as cases with documents and elements attached thereto;
b) To open the envelopes containing application requests, including envelopes referred to in paragraph 9 of the preceding article, where appropriate, as well as cases containing documents and elements of chapters on the applicant’s identification, the detailed description of the television broadcasting activity the applicant intends to pursue, the economical and financial plan and the technical plan;
c) To initial the application requests and statements referred to in paragraphs 7 and 8 of the preceding paragraph, where appropriate, to stamp the original documents of the chapters on the applicant’s identification and the first pages of the undividable sections of the chapters on the detailed description of the television broadcasting activity the applicant intends to pursue, the economical and financial plan and the technical plan, as well as to set a deadline for consultation of the application files by applicants;
d) To verify the accreditation documents presented by representatives of applicants;
e) To grant applicants up to 15 working days to amend any omissions or inaccuracies in applications;
f) To accept and to decide on any claims made during the tender opening by representatives of applicants, where necessary suspending the act.
Article 11
Admission and rejection of applications
1 – Up to 20 working days at the most from the tender opening, or where appropriate from the expiry of the time limit provided in paragraph 3 e) of article 10, ERC’s Board of Directors shall prepare a substantiated draft list of admitted and rejected applications.
2 – Within the same time limit as referred in the preceding paragraph, the Board of Directors shall notify applicants of the contents of the substantiated draft list, for the purposes of a prior hearing of interested parties, pursuant to article 100 et seq. of the Code of Administrative Procedure.
3 - At the end of the hearing, and within 10 working days, the Board of Directors must deliberate on the admission and rejection of applications.
4 – Within three working days, the deliberation referred to in the preceding paragraph shall be notified to interested parties, published in the II Series of the Official Gazette and made publicly available at ERC’s website.
5 – Conditional applications, understood to be those whose validity or effectiveness depend on the verification of a specific future or uncertain event, shall not be admitted.
6 – Applications shall be rejected at any stage of the tender procedure, where any of the following situations occurs:
a) Infringement of article 3;
b) Failure to comply with articles 7, 8, 9 and 14;
c) Failure to comply with tender requirements and conditions.
7 – Applications that failed to be subject to a favourable ICP-ANACOM opinion pursuant to article 12, as well as applications falling below 50% in the overall criteria assessment, as provided for in paragraph 8 of article 13, shall also be excluded.
Article 12
ICP-ANACOM opinion
Admitted applications shall be subject to a binding ICP-ANACOM opinion as far as technical conditions referred to in paragraph 2 of article 21 are concerned, which must be issued within 10 working days from the date of reception of the request made by ERC.
Article 13
Assessment of applications
1 – It is incumbent upon ERC’s Board of Directors to assess, classify and rank applications based on the following criteria:
Criterion a) Contribution towards the quality improvement of the television offer – valuation:50%
Sub-criterion a1) Guarantees for the safeguard of pluralism, weighed according to nonconcentration of licenses for unrestricted free-to-air programme services – valuation: 45%.
Sub-criterion a2) Guarantees for the safeguard of independence from political and economic powers and protection of rights granted by the Constitution to journalists, weighed according to:
i) Means that aim to preserve the editorial autonomy of the programme service and to ensure that the various strands of opinion can be expressed and compared; and
ii) Rights acknowledged to journalists in the editorial project – valuation: 10%;
Sub-criterion a3) Emphasis on information, weighed according to the provision of debates, interviews, news reports, comments and information magazines aimed to different segments of the public and positioning of these programmers taken as a whole – valuation: 15%;
Sub-criterion a4) Consistency of general programming guidelines with the respective editorial
status, given the legal purposes of the television broadcasting activity to be pursued by a
general programme service, laid down in paragraph 1 of article 9 of Law no. 27/2007, of 30 of July, weighed according to:
i) The provision of programmes of an educational nature, specially dedicated to cultural and information subjects, aimed to different segments of the public – valuation: 15%;
ii) Diversity of leisure programmes – valuation: 5%;
Sub-criterion a5) Correspondence of projects to the social and cultural reality they are aimed at, weighed according to the provision of programmes that promote the Portuguese culture and language, as well as citizenship and democratic participation – valuation: 10%;
Criterion b) Contribution towards the diversification of the television offer - valuation: 30%;
Sub-criterion b1) Originality of the television offer, weighted according to the innovation of the general programming lines in the light of the existent television offer in an unrestricted freeto- air access – valuation: 25%;
Sub-criterion b2) Investment on innovation and creativity, weighted according to:
i) Capacity of the available network that is used for a high definition broadcasting of contents – valuation: 30%;
ii) Investment in services and applications that complement and enhance the programmes services to be licensed, namely the operation of interactive services including electronic programming guides – valuation: 10%;
iii) Investment in the independent production of audio-visual works in Portuguese, either directly or through a financial participation in the Investment Fund for Cinema and Audiovisual, governed by Decree-Law no. 227/2006, of 15 November, and by Administrative
Rule no. 277/2007, of 14 March – valuation: 10%;
Sub-criterion b3) Guarantee of rights of access of minorities and under-represented tendencies, weighted according to the position in the programming, taken as a whole, of programmes:
i) Dedicated to minorities, particularly of an ethnical, religious, cultural and social nature; and
ii) Likely to be followed by persons with special needs, by resort to subtitling, sign language interpretation, audio-description and other appropriate technical means – valuation: 25%;
Criterion c) Contribution towards the dissemination of creative and independent European and original Portuguese language works - valuation: 10%:
Sub-criterion c1) Contribution towards the dissemination of creative European works, excluding creative original Portuguese language works, weighted according to the airtime granted and to the positioning in the programming taken as a whole – valuation: 30%;
Sub-criterion c2) Contribution towards the dissemination of creative original Portuguese language works, weighted according to the airtime granted and to the positioning in the programming taken as a whole – valuation: 40%;
Sub-criterion c3) Contribution towards the dissemination of independent creative European works, weighted according to the airtime granted and to the positioning in the programming taken as a whole – valuation: 30%;
Criterion d) Compliance with legal rules and with commitments entered into in the course of a previously pursued licensed television activity – valuation: 5%;
Sub-criterion d1) Compliance with obligations laid down in provisions that govern the access to and pursue of television broadcasting, weighted according to the degree to which provisions that apply to television broadcasting are followed – valuation: 50%;
Sub-criterion d2) Compliance with the project approved in the scope of the licensing procedure, weighted according to the television project to which the applicant is bound – valuation: 50%;
Criterion e) General guidelines of human resources policy, namely as regards recruitment, training and professional qualification plans, weighted according to their qualitative assessment – valuation: 5%.
2 – The assessment of the compliance with criteria and sub-criteria referred to in the preceding paragraph shall take account of the necessary balance between the different programming elements which make up a general programme service.
3 – Applicants that do not fit into the provision of criterion d) of paragraph 1 shall be granted the full valuation provided for therein.
4 – For the purpose of application of sub-criterion a1) and criterion d), both provided for in paragraph 1, consideration is given to licenses held by the applicant, as well as those held by:
a) Companies that directly hold at least 5% of the share capital or voting rights of the applicant;
b) Companies that control or are controlled, directly or indirectly, by entities that directly hold at least 5% of the share capital or voting rights of the applicant;
c) Other companies that are controlled, directly or indirectly by the applying company, by the company that controls directly or indirectly the applying company, and companies that are controlled, directly or indirectly, by a company that controls the applying company.
5 – The concept of “control” referred to in the preceding paragraph shall be weighted pursuant to article 21 of the Code of Transferable Securities, taking into account also the relations that, pursuant to article 20 et seq. of that Code, may lead to the charging of votes, regardless of whether entities under consideration are subject to it.
6 – In case of a tie between applications, the one that scored higher in the criterion of contribution towards the quality improvement of the television offer shall prevail.
7 – Where the tie subsists, following the application of the preceding paragraph, the application that scored higher in the criterion of contribution towards the dissemination of creative and independent European and original Portuguese language works shall prevail.
8 – A classification falling below 50% in the overall criteria assessment laid down in paragraph 1 shall result in the exclusion of the application for the purpose of a final classification.
Article 14
Provision of information by applicants
Applicants shall provide all information requested, and attach the necessary evidence, either directly or through duly qualified agents, thus allowing a full assessment of applications, within the time limit and in accordance with the procedure laid down by ERC’s Board of Directors.
Article 15
Final decision
1 – Within 30 working days from the date of the deliberation of the admission and rejection of applications, provided for in paragraph 3 of article 11, ERC’s Board of Directors shall prepare a final report with a draft ranking of applicants, duly substantiated, indicating the applicant that, having met all tender conditions and ranking criteria, was given the highest number of marks, promoting a prior hearing of interested parties, under article 100 et seq. of the Code of Administrative Procedure.
2 - At the end of the hearing, and within 8 working days, the Board of Directors must make a decision on the final ranking, indicating the applicant to whom the license shall be awarded, on account of having been given the highest number of marks.
3 – The deliberation referred to in the preceding paragraph shall be notified to all applicants, published in the II Series of the Official Gazette and made publicly available ERC’s website.
4 – As far as the winning applicant is concerned, the notification referred in the preceding paragraph shall attach, for the purposes of paragraph 2 of article 19, a draft license with the objectives and obligations entered into by the applicant, expressly mentioning the following obligations:
a) To submit the document referred to in paragraph 2 of article 3;
b) To fully pay up shares, pursuant to paragraph 3 of article 3;
c) To reinforce the security deposit provided for in article 5.
Article 16
Right to consultation
Without prejudice to the right to consultation provided for in the Code of Administrative Procedure, interested parties are entitled to consult tender files, in the course of the prior hearing of interested parties provided for in paragraph 2 of article 11 and paragraph 1 of article 15.
Article 17
Delegation of powers
1 – ERC’s Board of Directors may delegate in a commission designated by it any of the acts referred to in article 10, paragraphs 1 and 2 of article 11, article 13, article 14 and paragraph 1 of article 15.
2 – Acts taken by the commission in the scope of the delegation of powers provided for in the preceding paragraph may be challenged by an appeal to ERC’s Board of Directors, with a devolutive effect, pursuant to the Code of Administrative Procedure.
Article 18
Performance security and release regime
1 – The company who is awarded the license must reinforce the security deposit up to an amount of (Euro) 2 000 000.
2 – The security deposit mentioned in the preceding paragraph shall be released after the licensed television programme service starts broadcasting.
3 – The security deposit shall also be released where, having elapsed 12 months from the license award, the television programme service has not started broadcasting through no fault of the licensee, namely by reason of force majeure.
4 – Where any of the situations provided for in paragraphs 2 and 3 occur, ERC’s Board of Directors shall authorize the release of the security deposit within five working days from the date the interested party’s request is received.
5 – Save for paragraph 3, the security deposit shall be deemed to be broken and confiscated where the programme service fails to start broadcasting within 12 months from the date the license is issued.
Article 19
License issue
1 – The license, which shall contain, pursuant to paragraph 5 of article 18 of Law no. 27/2007, of 30 July, the obligations and conditions attached to the pursue of television broadcasting, shall be issued by ERC within 25 working days from the date of compliance with the provisions of paragraphs 2 and 3 of article 3 and paragraph 1 of the preceding article.
2 – For the purpose of the preceding paragraph, ERC shall grant a prior hearing to the applicant who is given the highest number of marks, pursuant to article 100 et seq. of the Code of Administrative Procedure.
3 – Where the applicant who is awarded the license unreasonably fails to comply with paragraph 1, ERC’s Board of Directors shall deliberate to award such license to the secondplaced applicant on the ranking list, granting a prior hearing of interested parties, pursuant to article 100 et seq. of the Code of Administrative Procedure.
4 – The determination taken by ERC’s Board of Directors, referred in the preceding paragraph, results in the repeal of any previously awarded licenses.
Article 20
Changing the share capital
1 – Without prejudice to compliance with applicable legal provisions, any changes in the share capital of the company that is awarded the license in the scope of the present tender, as well as of conditions for the award as regards the application of provisions of paragraphs 4 and 5 of article 13 shall be subject to ERC’s authorization for a five-year period of time.
2 – The authorization referred to in the preceding paragraph shall not be granted by ERC where the intended changes would result in a different classification of the applicant as regards sub-criterion a1) and criterion d), thus altering the applicant’s final classification and the ranking of applicants.
Article 21
Carrying and transmitting the licensed programme service signal
1 – The licensed programme service shall be carried and transmitted through the digital terrestrial television broadcasting service of the holder of frequency use rights, of national scope, to which the Multiplexer A is associated, in frequency bands identified in the Annex hereto, for the broadcasting of unrestricted free-to-air television programme services.
2 – For the purpose of the preceding paragraph, the license holder shall provide the following to the digital terrestrial television (DTT) operator, the holder of frequency use rights, of national scope to which the Multiplexer A is associated:
a) Video, audio and data signals at the Digital Broadcasting Centre of the DTT operator – video and audio signals in serial digital interface format (SDI) and data signal in the format defined by the DTT operator;
b) The necessary information to set up PSI/SI tables (program specific information/service information).
3 – Where the holder of the frequency use rights and the license holder fail to reach an agreement as to the remuneration due by the latter for the signal carrying and transmitting, ICP-ANACOM may establish an appropriate remuneration, which shall be applied in a proportionate, transparent and non-discriminatory manner.
Article 22
License
1 – The license shall include, in addition to the obligation to comply with provisions applicable during the period it remains in force:
a) Particulars identifying the license holder, the licensed programme service and the respective ranking;
b) Period of validity, respective terms and conditions;
c) Coverage obligations and respective timing, that correspond to the coverage obligations and respective timing of the holder of the frequency use rights referred to in paragraph 1 of article 21;
d) Obligations and conditions undertaken in the scope of the present tender by the license holder;
e) Its non-transferability;
f) Prohibition to alter circumstances in violation of paragraph 1 of article 20;
g) Obligations referred to in paragraph 2 of article 21.
2 – The license shall be issued for a 15-year-term, subsequently renewable for similar periods of time, pursuant to article 22 of Law no. 27/2007 of 30 July, without prejudice to the provisions in the said statutory instrument as regards grounds for suspension or repeal of the license and effects of the interim evaluation carried out by ERC.
Article 23
Other obligations of the license holder
1 – In addition to all obligations provided for in the scope of the present regulation and other applicable provisions, the license holder must start broadcasting within 12 months from the date the license is awarded, save where the delay was due to force majeure.
2 – In the absence of the agreement referred to in paragraph 3 of article 20 of Regulation no. 95-A/2008, of ICP-ANACOM, the license holder must accept the binding decision of ERC referred to in paragraph 4 of article 20 of the said regulation.
Article 24
Calculating time-limits
Provisions in article 72 of the Code of Administrative Procedure apply to the calculation of time-limits provided for herein.
Article 25
Exemption from liability
1 – Public bodies involved in the present tender shall adopt all appropriate measures, within the limits of their powers and meeting strict lawfulness and good-faith criteria, to ensure that the company to whom the license is awarded is able to pursue television broadcasting smoothly, using the digital terrestrial television service during the period the license is valid.
2 – Without prejudice to the preceding paragraph, public bodies shall not accept any responsibility for:
a) Delays in the commencement of the licensed programmes service broadcasting resulting from the failure of the digital terrestrial television service to operate;
b) Delays in the commencement of the licensed programmes service broadcasting resulting from the absence of an agreement between interested parties on the amount of the remuneration due for the signal carrying and transmitting;
c) Non-compliance by the holder of the frequency use rights to meet the legal obligation to ensure the broadcasting of the licensed programme service through the digital terrestrial television service.
ANNEX
Frequencies
The following frequencies shall be used in the Mainland and in the Autonomous Regions for the purpose of national coverage associated to Multiplexer A (MUX A):
Mainland:
Channel 67 - 838-846 MHz.
Autonomous Region of the Azores:
Channel 47 - 678-686 MHz (Island of São Jorge);
Channel 56 - 750-758 MHz (Island of Pico);
Channel 61 - 790-798 MHz (Islands of São Miguel and Graciosa);
Channel 64 - 814-822 MHz (Island of Faial);
Channel 67 - 838-846 MHz (Islands of Terceira, Santa Maria, Flores and Corvo).
Autonomous Region of Madeira:
Channel 67 - 838-846 MHz.
